AI is coming for your content. Are you ready?

Courts tend to move painfully slowly on copyright compared to the pace of business, but when it comes to artificial intelligence (AI) it’s not clear that copyright can protect companies from the flood of AI-generated intangible assets.

A new suit filed by Universal Music Group, Sony Music and Warner Records allege that AI music-synthesis companies Udio and Suno are committing mass copyright infringement by using recordings owned by the labels to train their music-generating AI models.

Cambridge, Massachusetts-based Suno and New York-based Udio can use their AI tools to generate novel song recordings based on text-based descriptions of music. The three plaintiff labels claim that Suno and Udio are using copyrighted songs to train their AI and therefore are seeking statutory damages of up to $US150,000 per song used in that training.

The case is worth following because music – a key part of the intangible asset group of “content” – is very different from the written word. While there are billions of books, articles, scripts and news stories, comparatively speaking there aren’t too many audio recordings.

In fact, there are so few songs that AI companies like Suno and Udio must cut songs into smaller pieces just to create enough training data for their software models. This lack of music data is a problem because originality from AI is in direct proportion to the quantity of its training data. So, if an AI has too few pieces of music in its memory bank, it will regularly produce music that sounds suspiciously similar to copyrighted material.

Udio and Suno were already walking a tightrope when they built their AI because US courts have many times declared that songs which sound similar or have an element lifted from another song (like a bass line) are enough to infringe on copyright. Music copyright is made even more complicated because a typical song will have many separate copyrights.

For example, there could be different copyrights for the sound recording, the lyrics and the music. There may even be extra sub-copyrights within these categories if someone has licensed a piece of music or lyrics for their own lyrics or music. Furthermore, while the recording may be owned by the record producer the lyrics and music could be owned by the composer or lyricist.

Recorded music can be a legal minefield. However, artists working in the US have it a bit easier due to the history of piano rolls. It’s worth unpacking this history.

In the early 1900s, the US company White-Smith Music Publishing held a monopoly over the piano roll market. Piano rolls are sheets of paper with holes punched out, each of which tell an automated piano which keys to press to play music.

In 1908 the company won a case in the US Supreme Court which ruled that its rolls were not copies of the original music since they weren’t human-readable so composers couldn’t demand any royalties. The composers immediately lobbied Congress to change the law to force player pianos to get a licence if they wanted to use piano rolls.

As a compromise, Congress created a “mechanical licence” which meant that while copyright owners couldn’t refuse permission to use their works, third-party organisations would act as “collective licensing” agencies to ensure they were paid for their music. So, rather than needing to seek a licence directly from the copyright owner, piano roll companies could just pay a fee to the agency which would in turn pay the composers.

As you might expect, this compromise has made life tough for artists who hope to use samples from already-existing music when creating new songs.

The Beastie Boys, for example, sampled over 300 songs on their album “Paul’s Boutique,” including 25 on the last song alone. Public Enemy sampled more than 20 songs in “Fight the Power.” Both bands were sued, but both won their cases.

However, when George Harrison wrote a song that sounded too much like “He’s So Fine,” he had to pay up. Vanilla Ice used one sample all the way through a song, and he also had to pay up (he was also forced to give Queen and David Bowie co-writing credit on the song).

The entire reason those artists were using samples was because, as mentioned above, there aren’t all that many “new” ways to create music.

It’s been known for centuries that there are only a finite number of chord progressions and an even smaller number of tunes that humans find pleasurable. If human artists regularly copy each other when writing “new” songs, how easy will it be for AI tools to infringe on copyrighted material?

Very easy. That’s why the music labels are so worried.

The suit against Udio and Suno feels a bit like the story of the boy with his finger in the dike. The flood of AI-generated music content (not to mention video, audio and written content) is building. It won’t be long before the digital world is flooded with simulacra, drowning out human-created artistic work.

Music labels are doing everything they can to delay this moment since content is the only intangible asset they own of any real worth. They know if anyone can use AI to create their own music, then the value of Universal Music Group, Sony Music and Warner Records will collapse to zero overnight.

The reality is that the first of these labels to defect and embrace AI-generated music will likely be the winner. It will be interesting to see what happens next.

The real question is: Are your most intangible assets AI-proof?

Are you sure?